The use of surveillance cameras in the workplace in Canada is quite common. Often, surveillance cameras are installed to deter theft, vandalism, assault, harassment and suspected criminal or improper activity. However, many employees question the right of employers to record them in the workplace and state that it is a breach of their privacy. Do employees’ privacy rights compete with employers’ needs to ensure that his or her employees do their job, come in at the right hours, and don’t behave inappropriately?

This case involves a union’s application to exclude video footage from the admissible evidence in a recent grievance in British Columbia involving two terminated employees who were caught on camera having intimate relations in the workplace. The arbitration panel found that the employer could use the video footage of the pair having sex as part of the evidence it used to justify their dismissal.

The union grieved the employees’ terminations, arguing that hidden camera footage of employees caught having sex was an invasion of privacy. The union stated that the employer’s decision to employ surveillance was a product of “paranoia and distrust” arising out of bad labour relations, and that it was unnecessary in the circumstances to determine whether anyone, or who, was accessing the locked filing cabinet. The union also stated that the employer improperly used and disclosed personal information in contravention of the Freedom of Information and Protection of Privacy Act.

The employer, on the other hand, argued that protecting its information was one concern, but determining who it believed had accessed the information without authorization was an equally legitimate objective in the context. In addition, the employer submits that under s. 26(c) of the British Columbia Freedom of Information and Protection of Privacy Act, it may collect personal information necessary for the management of its employment relationships because it is “generally accepted that management of an employment relationship – including the investigation of misconduct for the purposes of managing an employment relationship – is considered to be part of ‘an operating program or activity of the public body.'”

It is important to note that rumors of the content of the video footage spread throughout the workplace. The employer submitted that any disclosure beyond those persons who were authorized was instigated by one of the dismissed employees or one of the union representatives who attended one of the dismissal meetings.

As stated before, this case, at this time, deals with the union’s application to exclude the video footage from the admissible evidence. It is a case that warrants an analysis of an employee’s right to privacy and the specific types of circumstances in which an employer can use surveillance cameras to spy on workers.

Analysis and decision

In a unionized setting, labour arbitrators deal with privacy issues in workplace surveillance situations by determining the reasonableness of the surveillance with respect to the scope of management’s rights under the collective agreement and by balancing the interests of both management and the employees’ right to privacy.

Arbitrators require employers using hidden video surveillance to show reasonable grounds for using the surveillance and justify the scope and location of the surveillance.

Arbitrator Dorsey writes in his decision that “The union does not deny the two employees engaged in the activity recorded in the footage, which the union characterizes as ‘a deeply personal and compromising interaction.’” Therefore, “The agreed question is whether relevant video footage is to be excluded from the evidence because of the manner in which it was obtained and disclosed by the employer.”

The Arbitrator decided that the manner of collecting personal employee information by the employer through surreptitious surveillance without audio was reasonable in the circumstances. The setup was limited to capturing footage of anyone entering the office and accessing the filing cabinet when the Interim Chief was away from his office during his non-working hours.

The Arbitrator found that the installation of a surveillance camera in this context was an “indirect collection” of personal information under British Columbia’s public sector privacy legislation.

[79] The board concludes the personal information in the video footage was collected for the purpose in section 27(f) which allows collection indirectly. Notice did not have to be given to any individual or individuals of this collection indirectly because, in the circumstances, as provided in section 27(4), it was “reasonable to expect that the notification would compromise (a) the availability … of the information” sought to be collected. Tell them and they will not come.

The viewing of any of the video footage was not to identify or watch the firefighter perform an assigned task but to look for someone else doing something else, like the firefighter who rummaged through documents on the Interim Chief’s desk. When there was no footage of someone else doing something else, the footage was immediately deleted with no record kept. Therefore,

[265] The brief, fleeting loss of privacy by individual firefighters […] was at the lower end of any range of seriousness of invasion of privacy at work. The video footage was not a serious invasion of privacy for each firefighter.

Also, there is no evidence that the employer disclosed the existence or content of the video footage beyond the persons to whom disclosure was authorized. Access to the footage saved was limited to persons with the authority and responsibility to make decisions and to perform a function in relation to what was captured in the footage. The close control and security the employer placed and maintained on the saved footage was not challenged.

The arbitrator decided to dismiss the union’s application to exclude the video footage from the admissible evidence in the arbitration over the dismissal of each of the two employees. The grievance on the terminations continues.

Lessons for employers

Employers are interested in protecting themselves in situations involving theft, security, safety, protection of property, productivity, and liability. In order to accomplish this goal, employers choose to use one of the most common forms of surveillance, namely video surveillance.

In either union or non-union settings, employers use video surveillance inside the workplace to monitor conduct and performance, and outside the workplace to monitor particular employees in suspicious situations.

To be able to surveil employees without violating employee privacy, employers must first consider the impact of federal or provincial privacy legislation. Employers must also demonstrate that a substantial problem exists that requires surveillance. They also must show that they exhausted all alternatives and that no less intrusive method will work.

As stated in the decision,

[231] If the collection of personal information indirectly was necessary and the surveillance that collected the information was a reasonable exercise of managerial authority conducted in a reasonable manner, the video footage will be admitted as part of the evidence to be considered in this board’s review of the employer’s decisions to dismiss each of the two employees.

[232] If the collection and surveillance were not, the board will exercise discretion granted under the Labour Relations Code to exclude the video footage and the personal information it contains from the evidence in this arbitration on whether the dismissal of each employee was for just and reasonable cause. The exclusion will be because the collection of personal information of each employee was unauthorized and, in the circumstances, an unjustified employer invasion of employees’ privacy rights.

Video surveillance is more likely to be admissible in a wrongful dismissal action to prove just cause as long as the tape addresses the issues in dispute and the surveillance was not conducted in a prejudicial manner.